West Coast Environmental Law

When Randy Saugstad realized that clearcut logging by forestry giant Tolko was probably going to affect the water he uses to raise cattle on his ranch, he went to the B.C. Ministry of Forests, Lands and Natural Resource Operations.

“We know,” they told him. “But we don’t have the power to stop them logging.”

They explained that B.C.’s forestry laws turned over the final decision about whether to log upstream from his ranch to Tolko’s foresters. Randy’s fears were later realized and his stream wrecked, so he sued Tolko, ultimately forcing the company to settle for an undisclosed amount (although the company continues to deny responsibility).

The prospect of a new provincial government in B.C. has sparked fresh political debate about Kinder Morgan’s Trans Mountain pipeline, which is opposed by B.C.’s NDP and Green Party, despite already receiving provincial and federal approval.

“There are no tools available for a province to overturn or otherwise block a federal government decision,” stated Alberta Premier Rachel Notley this week.

A bill to restrict the movement of oil off the north coast of British Columbia has been formally tabled by the federal government in the House of Commons, according to a statement released by Transport Canada Friday.

The proposed legislation, which would restrict tankers carrying more than 12,500 metric tons of crude oil from entering or exiting north coast ports, must now make its way through Parliament.

The National Energy Board (NEB) is a “captured regulator” that has “lost touch with what it means to protect the public interest.”

That’s what Marc Eliesen — former head of BC Hydro, Ontario Hydro and Manitoba Hydro, and former deputy minister of energy in Ontario and Manitoba — told the NEB Modernization Expert Panel on Wednesday morning in Vancouver.

“The bottom line is that the board’s behaviour during the Trans Mountain review not only exposed the process as a farce, it exposed the board as a captured regulator,” he said to the five-member panel.

The tanker ban, however, won’t protect the coast from incidents like the Nathan E. Stewart from happening again, nor from the threat of future refined oil tankers passing through the same waters, according to a new analysis by West Coast Environmental Law.

Reviewing the tanker ban proposal, which has yet to be passed as legislation, West Coast identified numerous loopholes and exclusions that allow for the continued transport of oil on B.C.’s north coast via foreign fuel barges and even, potentially, in supertankers full of refined oil products like jet fuel.

If you feel exhausted by Canada’s fevered debates about oil pipelines, liquefied natural gas terminals, renewable energy projects and mines, there just might be relief in sight.

Right now, the federal government is reviewing its environmental assessment (EA) process. Yes, it’s reviewing its reviews. And while that might sound kinda boring, it could actually revolutionize the way Canada makes decisions about energy projects.

“My highest hope is that Canada will take advantage of this once in a lifetime opportunity … and take a really visionary approach to environmental assessment,” said Anna Johnston, staff counsel at West Coast Environmental Law.

That could include implementing something called “strategic environmental assessment,” which creates a forum for the larger discussions about things like oil exports, LNG development or all mining in an area.

So instead of the current environmental assessment process, in which pipeline reviews have become proxy battles for issues such as climate change and cumulative effects, there’d actually be a higher-level review designed specifically to examine those big-picture questions.

Thanks to a number of changes — mostly via the “Environmental Process Modernization Plan” of the mid-2000s and the Conservative Party’s industry-led gutting of the Fisheries Act in 2012 — most projects are now “self-assessed” by proponents.

Over the same span, the DFO’s budget was repeatedly slashed, increasingly undermining the department’s ability to monitor and enforce contraventions with “boots on the ground.”

“Harm is happening at the same levels that it always has been,” says Martin Olszynski, assistant professor in law at University of Calgary who specializes in environmental, water and natural resources law. “It’s just that fewer and fewer proponents are coming to DFO and asking for authorization. That’s the reality on the ground.”

Canada’s major ports handle more than 300 million tonnes of cargo every year. They’re how we import products like cars and TVs and how we export commodities like grain and oil. Yet many of us have likely never thought of how the country’s 18 Canada Port Authorities (CPAs) are run — until now.

The way that decisions are made at Canada’s ports are coming under increasing scrutiny from environmentalists, who take issue with ports operating as both a promoter and regulator of trade.

The boards of directors of Canada’s port authorities determine what terminals receive approval for construction, and thus what types of commodities end up leaving the harbour.

Take Port Metro Vancouver (officially known as the Vancouver Fraser Port Authority), for example. It’s the largest port authority by tonnage in the country: in 2015 it facilitated the exchange of 138 million tonnes of cargo.

In September 2012, Fraser Surrey Docks — one of 28 marine terminals located at Port Metro Vancouver — announced plans to export eight million tonnes of thermal coal mined in Montana and Wyoming to Asian markets every year.

A new report released Wednesday chronicles the changes made to Canada’s environmental laws under the federal Conservatives since they formed government in 2011.

The report, released by West Coast Environmental Law and the Quebec Environmental Law Centre, highlights “the repeal or amendment of most of Canada’s foundational environmental laws since 2011” and suggests many of the changes were a “gift to industry.”

“The record suggests that industry lobbied hard for removing environmental protections that it believed were impeding business,” the report states.

Major changes include the weakening of the Navigable Waters Protection Act, which removed 99 per cent of Canada’s lakes and rivers from protection, as well as changes to the Fisheries Act and the Species at Risk Act.

Weakening of the Canadian Environmental Assessment Act means approximately 90 per cent of major industry projects that would have undergone a federal review no longer will, according to the report.

Karine Peloffy, director general of the Quebec Environmental Law Centre, said Canada’s environmental legislation is intrinsically tied into the fabric of the country’s democracy.

“Our waters, species, and our very democracy have been put at risk by changes made to our environmental laws since 2011,” Peloffy said.

West Coast’s climate work focuses on the reality that we can’t keep pretending that greenhouse gas emissions are not a deadly serious problem. The world (including Canada) is experiencing disastrous flooding, sea-level rise, extreme storms, droughts and heat waves, increased frequency and intensity of forest fires, the spread of pest species and other climate-related impacts here and now. Because of the scale of the damages, even smaller contributions are responsible for devastating results.

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